The US Federal Energy Regulatory Commission has turned toward a more generous approach to allowing late intervention in its natural gas project dockets, potentially enabling further challenges to its gas project siting decisions from pipeline opponents and proponents alike.
According to FERC Chairman Richard Glick, the action came in an order, approved 4-1 on April 15, to allow Enbridge Gas Pipelines to intervene late in the certificate proceeding involving a Northern Natural Gas replacement project (CP20-487)—the case in which FERC recently broke ground on an important policy debate by considering the significance of the climate impacts of a gas project.During FERC's monthly open meeting, Glick said the commission has effectively reversed course on its February 2018 position that it would no longer be as lenient in the grant of late interventions. That position, as well, was contained in an individual project decision, related to a Tennessee Gas Pipeline rehearing (CP16-4).
Glick told reporters he believes FERC should return to its prior approach of assessing good cause on a case-by-case basis and "not be so stringent," particularly when there is good reason for a party missing the deadline for intervention. The Northern Natural order was not immediately available.
Enbridge requested to intervene the night before FERC was scheduled to vote March 18 to approve the Northern Natural certificate. In doing so Enbridge cited concerns about the possibility of industry-wide policy changes occurring in individual certificate dockets at the commission, in light of FERC's recent decision affecting Enbridge on the Atlantic Bridge Project that drew broad industry pushback.
Glick, during the open meeting, agreed with Enbridge that the Northern Natural case addressed a broad policy.
"I believe Enbridge had good cause to intervene late because the company might not have had that reason to know commission would be updating its approach with regard to a project's greenhouse gas emissions, just like other parties had no advanced warning when the commission established its previous greenhouse gas policy in the [Dominion] New Markets [Project] order in 2018," Glick said.
Commissioner James Danly, who in March encouraged "every single natural gas pipeline company, every single LNG company, and every shipper" to intervene in every certificate proceeding before the commission to protect their interests, nonetheless voted against allowing Enbridge to intervene.
He acknowledged he had encouraged widespread intervention because of surprises in a couple of FERC issuances, but said there was no contradiction in his position.
"There is no inconsistency at all in the fact that I, in a particular case, don't believe that the movant has met the good cause showing that's required under Rule 214 because I take a rather stringent view when it comes to procedural rules," he said. The proper way to liberalize FERC's approach would be by amending the rule, allowing for public notice and comment, he said.
Aiming for participation, durabilityCommissioner Allison Clements embraced the altered approach, suggesting it would produce strong and more durable commission decisions.
"I support the generous and flexible approach to late intervention adopted in this order, because it allows broader participation in commission proceedings, resulting in a fuller record and the expression of a wider range of perspectives," she said.
In her view, FERC's prior approach made it more difficult for individuals, communities and groups lacking familiarity with FERC precedent to participate in FERC proceedings.
Likewise, Glick emphasized to reporters that there are many affected parties, including landowners, that lack access to lawyers determining intervention deadlines.
"We want to encourage that participation, we want to encourage their comments and their input into our proceedings," he said.
The more open approach comes as FERC is working through policy differences in its gas project work, including on how it considers GHG impacts and assesses market need. A more generous approach to intervention could allow for industry challenges as FERC sorts through a new approach. It could also allow more environmental group intervenors to file legal challenges to project approvals.
ClearView Energy Partners, in a note to clients, said granting Enbridge's intervention provides a toe-hold for industry to seek rehearing on FERC's GHG significance decision. Rehearing requests in the Northern Natural case are due April 21.
A return to more expansive participation could at a minimum have the potential to extend the timeline of review of dockets pending before FERC, ClearView added.
Enbridge for its part, said it "believes that any FERC permitting policy changes must be forward looking and fully assessed to examine the impacts to natural gas energy infrastructure as a whole."
"Given recent changes policy and precedent at FERC occurred without prior notice, our participation in these proceedings is important to maintain our ability to permit, construct and operate facilities that safely deliver clean-burning natural gas to end-users," company spokesman Michael Barnes said in an email.
